1 

Filed 5/14/14 In re P.H. CA1/5 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION FIVE 

In re P.H. et al., Persons Coming Under 

the Juvenile Court Law. 

CONTRA COSTA CHILDREN & 

FAMILY SERVICES BUREAU, 

 Plaintiff and Respondent, 

 v. 

S.M., 

 Defendant and Appellant. 

 A138711 

 (Contra Costa County Super. Ct. 

 Nos. J1101697, J1200937, 

 J1200938 & J1200939) 

 Appellant S.M. (Mother) is the mother of four children—P.H., T.M., P.L., and 

R.M. (collectively, Minors). She challenges the juvenile court’s jurisdictional and 

dispositional orders. We affirm. 

BACKGROUND 

Summary of Prior Dependency Proceedings 

 P.H. (born in November 1998) was under a probate guardianship from 1999 

through October 2011. In 2011, P.H. began living with Mother. The present Welfare and 

Institutions Code1 section 300 petition was filed on P.H.’s behalf in San Francisco 

County in September 2011, based on allegations Mother was neglecting his mental health 

needs and Mother’s home presented a health and safety risk. P.H. was adjudged a 

 

1 All further undesignated section references are to the Welfare and Institutions Code. 
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dependent of the court in November 2011 and the matter was transferred to Contra Costa 

County. 

 T.M. (born in February 2004) and P.L. (born in April 2006) were previously 

detained due to allegations of sexual abuse of T.M. by one of her two alleged fathers and 

Mother’s failure to protect T.M. Mother ultimately reunified with her children and the 

dependency proceeding was closed in April 2010. 

 R.M. (born in January 2010) had not been the subject of a dependency proceeding 

prior to the present case. 

Subsequent Petition On Behalf of P.H. and Initiation of 

the Present Proceedings Involving T.M., P.L., and R.M. 

 In May 2012, the Contra Costa County Children & Family Services Bureau 

(Bureau) requested issuance of a warrant for P.H. after he ran away from Mother’s home. 

On June 10, Mother was arrested for possession of stolen property. Although Mother had 

previously claimed she did not know P.H.’s whereabouts, P.H. was present when Mother 

was arrested. According to the police report, the police found Mother, P.H., and an adult 

male near Mother’s car, which had broken down in the street. P.H. initially gave a false 

name to the police, but he was taken into custody when his true identity was discovered. 

The police determined there was stolen property inside Mother’s car. Mother admitted 

she knew the property was stolen, uses drugs, and was going to sell the stolen property to 

someone she met through a drug dealer. Moreover, Mother did not have proper 

registration information for the car, and her driving privileges had been suspended. The 

adult male, subsequently determined to be living with Mother, had “a glass homemade 

pipe that is used for consumption of a controlled substance” in his pants pocket. 

 On June 11, 2012, Mother told a social worker the adult male had stolen the 

property from a neighbor’s house and she was going to throw the property away. 

Subsequently, Mother admitted P.H. was also involved in the theft. 

 On June 12, 2012, the Bureau filed a supplemental petition on behalf of P.H., 

alleging that the previous family maintenance plan had failed because Mother was 
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arrested for possession of stolen property while P.H. was present and Mother had a 

“serious and chronic substance abuse problem” that placed P.H. at risk.2

 Furthermore, on June 15, 2012, original petitions pursuant to section 300 were 

filed on behalf of each of the younger three children. The Bureau alleged under 

section 300, subdivision (b) (“Failure to Protect”), that the younger three children had 

suffered, or there was a substantial risk they would suffer, serious physical harm or 

illness as a result of the failure or inability of Mother to supervise or protect them 

adequately and due to her inability to provide regular care due to her substance abuse. 

Specifically, the petition alleged Mother “has a serious and chronic substance abuse 

problem that impairs her ability to provide appropriate care and supervision and places 

the child at substantial risk for serious physical harm and neglect.” Based on the June 10 

incident, the Bureau also alleged under section 300, subdivision (j) (“Abuse of Sibling”) 

that P.H. had been abused or neglected, and there was a substantial risk that the younger 

children would be abused or neglected as well. 

 Mother was not present at the June 18, 2012 detention hearing. The Minors were 

detained with supervised visitation with Mother. Mother was referred for alcohol and 

drug testing and substance abuse treatment, and the case was set for a jurisdictional 

hearing on June 25. 

 On June 20, 2012, the social worker spoke with T.C., Mother’s sister, who said 

Mother has struggled with drug addiction for several years; the sister said she believes 

Mother currently abuses methamphetamine. She reported that “several family members” 

had expressed concern about Mother’s drug use. T.C. also described a visit to Mother’s 

home during which she found the home dirty and in disarray; she believed Mother was 

 

2 On March 5, 2014, this court took judicial notice of a November 20, 2013 minute 

order dismissing P.H.’s section 300 dependency proceeding; the order reflects that P.H. is 

presently a ward of the court under section 602. This arguably renders this appeal moot 

as to P.H. (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1417.) However, we need not 

determine whether it would be appropriate to dismiss the appeal as to P.H. on the ground 

of mootness, because the juvenile court’s orders as to P.H. are properly affirmed under 

the same analysis applicable to the other Minors. 
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under the influence based on Mother’s behavior and demeanor. The sister also reported 

that T.M. and P.L. had missed school; T.M. had missed more than a month of school. 

T.C. also reported that P.H.’s father told her that P.H. called him after the June 2012 

arrest and told him that Mother was using methamphetamine and that Mother would 

point out the homes she wanted P.H. to burglarize. 

 P.H. told the social worker his siblings were not attending school because they 

were sick and he was not attending school because another student threatened him. He 

denied anyone in the home used drugs. Mother denied using drugs and told the social 

worker she took the Minors out of school because P.H. was involved in a gang and a kid 

threatened to shoot him. P.L. told the social worker he did not feel safe in Mother’s 

home and there was no food in the home. 

 Due to various delays, the contested jurisdictional hearing was eventually moved 

to November 19, 2012. Mother failed to appear at two prior hearings at which her 

counsel expected her to appear, and at the November 19 hearing, Mother’s counsel 

indicated that Mother had been present earlier but had left. Counsel stated, “Your Honor, 

my client was present outside of the courtroom, and she had left her file in a vehicle that 

transported her here. She advised me she was trying to contact that person to return so 

she could pick up her file. Unfortunately, we have been waiting, and I don’t yet see her 

outside, so I am prepared to go forward.” On the Bureau’s motion, the juvenile court 

amended the petitions involving Minors to allege, “the mother has a history of substance 

abuse which places the child at risk of harm.” The court sustained that allegation as to 

each of the Minors and dismissed the other allegations. 

The Juvenile Court’s Disposition 

 After continuances, the disposition hearing was set for January 31, 2013. Mother 

failed to appear and her counsel requested a hearing for withdrawal from representation. 

After further proceedings, counsel did not withdraw and the matter was set for a 

contested disposition hearing on March 18. 

 At the disposition hearing, the juvenile court received the Bureau’s disposition 

report into evidence, and heard testimony from Mother and a social worker, as well as 
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brief testimony from T.M. that she would prefer to live with her godmother. The juvenile 

court adopted the Bureau’s recommendations, adjudged or continued the Minors as 

dependents of the juvenile court, and found by clear and convincing evidence there is or 

would be substantial danger to the Minors if they were returned to Mother’s custody. 

 This appeal followed. 

DISCUSSION 

 Mother contends the evidence did not support the juvenile court’s jurisdictional 

findings or the court’s custody order following the dispositional hearing, and the juvenile 

court made other errors in its disposition. 

I. Jurisdictional Findings 

 At the outset, the Bureau contends Mother forfeited her argument that insufficient 

evidence supports the juvenile court’s jurisdictional findings, because Mother failed to 

specify those grounds in objecting to the court taking jurisdiction on November 19, 2012. 

However, Mother was not obligated to object to preserve her claim of insufficiency of the 

evidence. As pointed out in In re Brian P. (2002) 99 Cal.App.4th 616, 623, “ ‘Generally, 

points not urged in the trial court cannot be raised on appeal. [Citation.] The contention 

that a judgment is not supported by substantial evidence, however, is an obvious 

exception to the rule.’ [Citation.]” In Brian P., the court held that, while a parent may 

waive an objection that an adoption assessment does not comply with statutory 

requirements, a claim that there was insufficient evidence of adoptability is not subject to 

forfeiture. (Ibid.) The same principle applies to the sufficiency of the evidence claim in 

the present case. 

 On the merits, we review the record to determine whether substantial evidence 

supports the juvenile court’s jurisdictional findings. (In re James R. (2009) 176 

Cal.App.4th 129, 134-135 (James R.).) “We do not pass on the credibility of witnesses, 

attempt to resolve conflicts in the evidence or weigh the evidence. Rather, we draw all 

reasonable inferences in support of the findings, view the record favorably to the juvenile 

court’s order and affirm the order even if other evidence supports a contrary finding. 

[Citations.] [¶] Substantial evidence, however, is not synonymous with any evidence. 
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[Citation.] ‘A decision supported by a mere scintilla of evidence need not be affirmed on 

appeal.’ [Citation.] Although substantial evidence may consist of inferences, those 

inferences must be products of logic and reason and must be based on the evidence. 

Inferences that are the result of mere speculation or conjecture cannot support a finding. 

The ultimate test is whether a reasonable trier of fact would make the challenged ruling 

considering the whole record. [Citations.]” (Id. at p. 135.) 

 “Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if the 

child has suffered, or there is a substantial risk the child will suffer, serious physical harm 

or illness caused by the parent’s inability to provide regular care for the child because of 

the parent’s mental illness, developmental disability or substance abuse. A jurisdictional 

finding under section 300, subdivision (b) requires: ‘ “(1) neglectful conduct by the 

parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or 

illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” [Citation.]’ 

[Citations.] The third element ‘effectively requires a showing that at the time of the 

jurisdictional hearing the child is at substantial risk of serious physical harm in the future 

. . . .’ [Citation.]” (James R., supra, 176 Cal.App.4th at p. 135.) In enacting section 300, 

the Legislature intended to protect children who are currently being abused or neglected, 

“and to ensure the safety, protection, and physical and emotional well-being of children 

who are at risk of that harm.” (§ 300.2.) The Bureau had the burden of proving the basis 

for jurisdiction by a preponderance of the evidence. (§ 355, subd. (a); In re Henry V.

(2004) 119 Cal.App.4th 522, 528-529.) 

 Mother disputes there was sufficient evidence of a substance abuse problem to 

support jurisdiction. The record plainly supports the finding that Mother has a history of 

substance abuse. A police report reflects that Mother admitted to an officer that she uses 

drugs; the juvenile court was not obligated to believe her denial that she made such a 

statement. An adult male who was living with her had a glass pipe in his pocket at the 

time of the incident. Mother’s sister reported to the Bureau she believed Mother was 

using methamphetamine and she observed Mother under the influence. She also reported 

learning from P.H.’s father that P.H. told him Mother was using methamphetamine. The 
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Bureau also received “[t]wo anonymous reports . . . that mother is actively abusing illegal 

drugs.”3

 Mother also argues there was no evidence of current substance abuse at the time 

of the November 2012 jurisdictional hearing.4 In fact, the entire record gave the juvenile 

court sufficient basis to infer that Mother’s substance abuse continued. Only five months 

had passed since the June 2012 arrest, and during that time Mother was absent at multiple 

hearings, including the jurisdictional hearing itself. Mother was belligerent and 

uncooperative with the Bureau’s social worker, and she denied that substance abuse is an 

issue for her, despite the evidence to the contrary. Mother’s erratic and uncooperative 

behavior during the dependency proceedings supported a reasonable inference that her 

substance abuse continued. 

 Finally, Mother argues the Bureau failed to meet its burden of showing a specific 

risk of harm to the Minors as a result of Mother’s conduct. The Legislature has 

specifically emphasized, “The provision of a home environment free from the negative 

effects of substance abuse is a necessary condition for the safety, protection and physical 

and emotional well-being of the child.” (§ 300.2.) The record supported inferences that 

Mother’s drug use created risks to the Minors due to Mother’s unstable, dirty, and 

inadequately provisioned home environment; the people with whom Mother associated 

(including a drug abusing and thieving adult male who lived with Mother); the lack of 

school attendance, which created a greater risk of exposure to Mother’s drug use; and 

 

3 Mother made no objections to any specific hearsay evidence in the Bureau’s reports. 

(See § 355, subds. (b) & (c).) 

4 Mother also asserts, “the Bureau did not allege, and the court did not find, that 

[Mother] had a current substance abuse problem.” Mother misconstrues the Bureau’s 

allegation and the juvenile court’s findings. The allegation and findings that “[M]other 

has a history of substance abuse which places the child at risk of harm” is reasonably 

understood to mean that the history of substance abuse creates a present risk of use and 

resulting harm. Mother cites to no portion of the record wherein the Bureau argued that 

Mother’s history of substance abuse presented a risk of harm to the Minors other than due 

to the risk of harm resulting from substance abuse. 
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Mother’s erratic, irresponsible, and problematic behavior (including encouraging P.H. to 

commit burglaries, selling stolen property, and driving without a license). 

 Thus, the evidence supported an inference Mother’s substance abuse rendered her 

unable to provide a home “free from the negative effects of substance abuse.” (§ 300.2; 

cf. In re Destiny S. (2012) 210 Cal.App.4th 999, 1004 [substance abuse did not present 

adequate risk of harm where home was clean, the minor went to school and was 

adequately provided for, and the mother tested clean for three months before the 

jurisdictional hearing]; In re David M. (2005) 134 Cal.App.4th 822, 830 [“The evidence 

was uncontradicted that [the minor] was healthy, well cared for, and loved, and that 

mother and father were raising him in a clean, tidy home. Whatever mother’s and 

father’s mental problems might be, there was no evidence those problems impacted their 

ability to provide a decent home for [the minor]”]; and Jennifer A. v. Superior Court

(2004) 117 Cal.App.4th 1322, 1346 [“Most critically, the social worker testified Mother 

did not have a drug problem that affected her parenting skills”].) 

 We recognize this is a somewhat close case on substantial risk of harm, because 

there was little direct evidence of current drug use, little new evidence developed prior to 

the jurisdictional hearing, and no direct evidence of drug use in front of the Minors. 

However, as explained above, there was extensive evidence Mother failed to provide a 

home “free from the negative effects of substance abuse” (§ 300.2) and the evidence 

supported an inference Mother’s use was unabated. Substantial evidence supports the 

juvenile court’s jurisdictional findings. 

II. Dispositional Findings

 On March 18, 2013 the court adjudged the Minors dependents of the juvenile court 

(or, in P.H.’s case, continued that status), found the Minors could not safely be returned 

to Mother’s custody, and ordered a plan of family reunification. 

 A. Custody

 Mother contends insufficient evidence supports the juvenile court’s finding 

“[t]here is substantial danger to [Minors’s] physical health, or would be if [Minors] were 

returned home, and there are no reasonable means to protect [Minors without] removal of 
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physical custody.” (See § 361, subd. (c)(1).) Although the court made that finding by 

clear and convincing evidence (In re T.V. (2013) 217 Cal.App.4th 126, 135; (§ 361, 

subd. (c)), “on appeal from a judgment required to be based upon clear and convincing 

evidence, ‘the clear and convincing test disappears . . . [and] the usual rule of conflicting 

evidence is applied, giving full effect to the respondent’s evidence, however slight, and 

disregarding the appellant’s evidence, however strong.’ [Citation.]” (In re Angelique C.

(2003) 113 Cal.App.4th 509, 519). 

 We conclude the custody finding is supported by substantial evidence, for largely 

the same reasons the jurisdictional finding is so supported. Although the dispositional 

hearing occurred several months later, Mother’s behavior continued to be erratic, 

including missed visits with Minors. Moreover, by the time of the dispositional hearing, 

Mother had refused to participate in drug treatment or testing, despite receiving several 

referrals. That refusal frustrated the Bureau’s ability to prove current substance abuse 

with direct evidence, necessitated the juvenile court’s reliance on circumstantial 

evidence, and provided additional support for an inference that Mother’s drug use 

continued unabated. At the dispositional hearing, the social worker testified, “[Mother] 

presents to me very erratically. And there is no reason for her not to have been drug 

testing, other than that she possibly continues to use methamphetamines. [¶] The 

children were detained on the basis of that information being solid enough for the 

[Bureau] to believe that it’s impacting [Mother’s] decisions and her parenting. [¶] At the 

time that the children were removed from [Mother], they were living with [the Maternal 

Grandmother] . . . and had been pulled out of school, and [Mother’s] house was 

uninhabitable. And those are characteristics of families that are struggling with addiction 

and mental health problems. And I think the combination of both of those has to be 

addressed in order for the children to remain safe.” The Disposition Report stated, 

“[Mother’s] behaviors suggest that she is emotionally very unstable. She is unable to 

engage in a non[-]confrontational conversation with this worker or her supervisor. At 

this time, all conversations with [Mother] can be characterized as aggressive.” At the 

hearing the social worker further explained, “I cannot verbally present information . . . or 
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have a minute of uninterrupted or even 30 seconds of uninterrupted conversation where I 

can actually provide [Mother] with needed information.” 

 At the disposition hearing, Mother denied having a drug problem and stated she 

would be willing to take a drug test that day and for a “short period.” The juvenile court 

was not, however, obligated to believe Mother’s denial, or to conclude her last minute 

offer to participate in limited drug testing outweighed the evidence that Mother’s 

unresolved drug problem undermined her ability to parent the Minors safely or her entire 

prior history, which the court could properly consider as evidence of her likely future 

conduct. Neither was the court obligated to give determinative weight to the fact that 

Mother had a number of positive and appropriate visits with the Minors, especially where 

she missed approximately half the scheduled visits between June 2012 and March 2013 

and was “typically” late when she did make the visits. Mother presented explanations for 

missed visits and other circumstances in her testimony, but the juvenile court was not 

obligated to accept those explanations as credible or adequate.5

 The juvenile court concluded, “given [Mother’s] erratic behavior, which is 

consistent with a substance abuse problem, given all of the statements of the family 

members, her own admission, and the fact that she was found at the time when there was 

a smoking device, there is more than ample evidence in the record to support a 

conclusion that Mother has a substance abuse problem.” The evidence supports that 

conclusion and the court’s further finding that Mother’s substance abuse presented a 

substantial danger necessitating removal of the Minors from Mother’s physical custody. 

 B. Reasonable Efforts 

 Under section 361, subdivision (d), the juvenile court was obligated to determine 

“whether reasonable efforts were made to prevent or to eliminate the need for removal of 

 

5 Mother also references her testimony at the disposition hearing expressing concern 

about the safety of the Minors in foster care. However, she fails to present authority that 

a dangerous foster care placement provides a basis to decline to remove a minor from the 

physical custody of a parent where that custody presents a substantial danger to the 

minor. An obvious and appropriate Bureau response to an unsafe foster care placement is 

to change to a different foster care placement. 
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the” Minors and “state the facts on which the decision to remove the [Minors] is based.” 

Mother contends the juvenile court erred in failing to state the basis for its finding and the 

error was prejudicial because “there were less drastic alternatives to removal.” 

 We conclude any error by the juvenile court in failing to state the basis of its 

finding was harmless because it is not “reasonably probable” (In re Jason L. (1990) 222 

Cal.App.3d 1206, 1218) the outcome would have been different had the court expressly 

stated the basis for its finding. It is clear the juvenile court found credible the Bureau’s 

testimony about Mother’s uncooperativeness and erratic behavior, believed Mother was 

still using drugs, and was troubled by Mother’s refusal to participate in drug treatment. 

In that context, it is clear the juvenile court’s reasonable services finding reflects the 

court’s determination that Mother’s unwillingness to address her drug problem or 

cooperate with the Bureau made options short of removal unviable. 

 Mother contends the Minors could have safely been returned to her care because 

she had new housing and expressed a willingness to cooperate with the Bureau and 

comply with the court’s orders. However, the juvenile court was not obligated to accept 

those assurances as credible or adequate, in light of Mother’s record of uncooperativeness 

and her unwillingness to accept anything more than a “short period” of random drug 

testing. 

 Mother has not shown a basis to reverse the juvenile court’s reasonable efforts 

finding. 

 C. Reunification Plan

 Finally, Mother contends the juvenile court failed to ensure Mother’s case plan 

was tailored to her circumstances because the court refused to accept Mother’s suggestion 

to have a drug and alcohol assessment and only a short period of testing, so Mother could 

demonstrate she did not have a current substance abuse problem. 

 The reunification plan “must be specifically tailored to fit the circumstances of 

each family [citation], and must be designed to eliminate those conditions which led to 

the juvenile court’s jurisdictional finding.” (In re Dino E. (1992) 6 Cal.App.4th 1768, 

1777.) In the present case, the juvenile court found it had jurisdiction over the Minors 
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because Mother had a “history of substance abuse which places the [Minors] at risk of 

harm.” As explained previously, the risk of harm arose from the evidence Mother was 

still abusing drugs. The juvenile court did not abuse its discretion in requiring Mother to 

participate in drug treatment in the reunification plan. (In re Christopher H. (1996) 50 

Cal.App.4th 1001, 1006-1007; cf. In re Drake M. (2012) 211 Cal.App.4th 754, 770 

[inclusion of substance abuse component in reunification plan error where “there is 

nothing in the record to indicate [Father] has a substance abuse problem”].) 

DISPOSITION 

 The juvenile court’s orders are affirmed. 

 

 SIMONS, J. 

We concur. 

 

JONES, P.J. 

 

BRUINIERS, J.